Doc­tors go to court to keep billings se­cret

Group seeks to over­turn or­der that would force ministry to re­veal names of prov­ince’s top OHIP-billing physi­cians


Two groups of doc­tors and the On­tario Med­i­cal As­so­ci­a­tion are headed to court Mon­day to ar­gue that OHIP pay­ments to top-billing physi­cians are “per­sonal in­for­ma­tion” and should not be pub­lic.

The in­for­ma­tion and pri­vacy com­mis­sioner last year or­dered the pub­lic disclosure of the top billers’ iden­ti­ties, along with amounts each re­ceives in pay­ments from the tax­payer-funded in­sur­ance plan. The in­for­ma­tion is busi­ness-re­lated, not per­sonal, and should be pub­lic be­cause of the im­por­tance of trans- parency of gov­ern­ment ex­pen­di­tures, the rul­ing said.

Aju­di­cial re­view of that de­ci­sion is be­ing sought by the OMA and two groups of doc­tors — known in court sub­mis­sions only as “sev­eral physi­cians af­fected di­rectly by the or­der” and “af­fected third­party doc­tors.” They are ask­ing a three­judge panel in Di­vi­sional Court to quash the in­for­ma­tion and pri­vacy com­mis­sioner tri­bunal’s or­der.

The case orig­i­nated more than three years ago with a free­dom of in­for­ma­tion re­quest from the Star to On­tario’s Health Ministry for physi­cian-iden­ti­fied data on the top 100 billers.

The ministry granted par­tial ac­cess — pay­ments and most med­i­cal spe­cial­ties — but with­held physi­cian names, deem­ing that their re­lease would be an un­jus­ti­fied in­va­sion of pri­vacy. The Star suc­cess­fully ap­pealed that de­ci­sion to the pri­vacy com­mis­sioner, ar­gu­ing there is a pub­lic in­ter­est in disclosure of the names.

The top 100 OHIP billers took in a com­bined $191mil­lion in 2012-13, ac­cord­ing to data sup­plied by the ministry. The high­est biller alone claimed more than $6 mil­lion, while the sec­ond- and third­high­est billers each claimed more than $4 mil­lion. Nine­teen doc­tors re­ceived pay­ments of more than $2 mil­lion each.

The ju­di­cial re­view of the case is sig­nif­i­cant be­cause the out­come could af­fect how much data on physi­cian billings can be re­leased in the fu­ture. Pend­ing the out­come of this case, the in­for­ma­tion and pri­vacy com­mis­sioner has put on hold another ap­peal by the Star, this one seek­ing the re­lease of physi­cian-iden­ti­fied billings for all On­tario doc­tors.

Other ju­ris­dic­tions — in­clud­ing Bri­tish Columbia, Man­i­toba and the United States — al­ready re­lease such data an­nu­ally.

And On­tario al­ready makes pub­lic the names and salaries of doc­tors em­ployed in the pub­lic sec­tor — for ex­am­ple, at hos­pi­tals — in its an­nual Sun­shine List of pub­lic ser­vants earn­ing more than $100,000.

But they rep­re­sent only a small frac­tion of On­tario’s 29,000 physi­cians, most of whom work as in­de­pen­dent con­trac­tors.

The pri­vacy com­mis­sioner’s June 2016 rul­ing in the case states that OHIP pay­ments con­trib­ute to physi­cians’ gross rev­enue, which is not the same as per­sonal in­come. The in­for­ma­tion, there­fore, is not pro­tected un­der the pri­vacy pro­vi­sions of the Free­dom of In­for­ma­tion and Pro­tec­tion of Pri­vacy Act (FIPPA), ad­ju­di­ca­tor John Higgins wrote.

His de­ci­sion de­parted from pre­vi­ous rul­ings by the com­mis­sioner that found such in­for­ma­tion to be per­sonal. The Supreme Court has found that past de­ci­sions are not bind­ing in such ad­min­is­tra­tive de­ci­sion-mak­ing.

Even if it were per­sonal in­for­ma­tion, Higgins wrote, there is a com­pelling pub­lic in­ter­est in disclosure, which over­rides FIPPA pri­vacy ex­emp­tions.

For Higgins’s or­der to be quashed, the Di­vi­sional Court would have to find that it was “un­rea­son­able.”

The ap­peal­ing doc­tors ar­gue that Higgins erred by not be­ing con­sis­tent with pre­vi­ous pri­vacy com­mis­sioner rul­ings. The fac­tum from “sev­eral physi­cians” and “af­fected third-party doc­tors” states:

“The ad­ju­di­ca­tor’s de­ter­mi­na­tion that the in­for­ma­tion be­ing sought was not ‘per­sonal in­for­ma­tion’ is wrong as a mat­ter of both fact and law and is clearly un­rea­son­able. While he rec­og­nized the ex­is­tence of those prior de­ter­mi­na­tions . . . he chose to ig­nore or dis­tin­guish them on spe­cious grounds while ig­nor­ing the over­whelm­ing weight of au­thor­ity they sup­ply.”

The doc­tors ar­gue, “One’s name is the most in­ti­mate of per­sonal in­for­ma­tion.”

These doc­tors also con­tend the pri­vacy watchdog was not ob­jec­tive in its han­dling of this case. They point to a 2014 Star ar­ti­cle, which re­vealed the pa­per was launch­ing the ap­peal. In­for­ma­tion and pri­vacy com­mis­sioner Brian Beamish was quoted as say­ing there was a grow­ing trend to­ward trans­parency of in­for­ma­tion re­lated to gov­ern­ment ex­pen­di­tures and that an ap­peal would pro­vide a good op­por­tu­nity to take a fresh look at the is­sue.

Beamish was ini­tially the ad­ju­di­ca­tor on this case, but re­cused him­self at the re­quest of the doc­tors.

The OMA ar­gues that physi­cian names should re­main con­fi­den­tial given that doc­tors are not gov­ern­ment em­ploy­ees.

“Physi­cians are not pub­lic ser­vants with clearly de­fined salaries, ben­e­fit plans and gov­ern­ment pen­sions. Quite sim­ply, rev­enue (from OHIP billings) is not in­come,” the OMA’s fac­tum states.

“Many physi­cians have ad­di­tional huge over­head costs which can in­clude not only rent or equip­ment but the em­ploy­ment of dozens of sup­port staff and/or al­lied health pro­fes­sion­als. Physi­cian billing in­for­ma­tion is sim­ply not com­pa­ra­ble to the salary of po­lice chiefs, and has such a high like­li­hood of mis­in­ter­pre­ta­tion by the pub­lic (as) to ren­der it mean­ing­less,” it con­tin­ues.

Afac­tum from the pri­vacy com­mis­sioner ar­gues that the ap­pli­ca­tion for the ju­di­cial re­view should be dis­missed be­cause the doc­tors have not “pos­i­tively demon­strated the or­der was un­rea­son­able.”

It charges that the doc­tors, in their fac­tums, “speak lit­tle of the ac­tual de­ci­sion which is the sub­ject of this ju­di­cial re­view. In­stead, they seek to re-ar­gue . . . their po­si­tion be­fore this court.”

The Star’s fac­tum notes that un­der FIPPA, “the pre­sump­tion is ac­cess.” The bur­den of proof rests with those seek­ing to limit disclosure to make their case.

Spend­ing on health con­sumes al­most half of the pro­vin­cial bud­get and pay­ments to doc­tors un­der OHIP rep­re­sents a sig­nif­i­cant por­tion of that spend­ing, the Star’s fac­tum states.

“Gov­ern­ment ex­pen­di­tures have been rec­og­nized as crit­i­cally re­lated to the trans­parency and ac­count­abil­ity goals of ac­cess to in­for­ma­tion leg­is­la­tion,” it says, adding that the gov­ern­ment rou­tinely dis­closes pay­ments to con­sul­tants, pri­vate par­ties and em­ploy­ees.


The doc­tors ar­gue that in­for­ma­tion and pri­vacy com­mis­sioner Brian Beamish was not ob­jec­tive in his han­dling of the case.

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